White v. Adams

Geoege Rose Smith, J.

By Act 48 of 1945 a privilege tax of $100 a week, payable to the county, was levied upon every person practising any form of fortune telling. Ark. Stats. 1947, § 84-1520. The appellee, a professional fortune teller, brought this suit to enjoin the officials of Crittenden county from collecting the tax and to obtain a decree declaring the statute to be unconstitutional. The principal attacks upon the act are, first, that the tax is so high as to demonstrate a legislative intention to prohibit rather than to regulate, and, second, that the act violates the due process and equal protection clauses of the Fourteenth Amendment. The chancellor held the act to be invalid and enjoined its enforcement.

The proof shows that the appellee has followed her trade in Crittenden county for at least two years. At first her income averaged more than $200 a week, and it is stipulated that for a period of 100 weeks the appellee compiled with the statute by paying privilege taxes totaling $10,000. Later on, however, several fortune tellers were licensed to practise in Memphis, across the river from Crittenden county, and as a result of this competition the appellee’s income declined to about $50 a week. This suit was then brought, upon the theory that the tax destroys the appellee’s right to engage in a lawful calling.

The fallacy in the appellee’s argument lies in its assumption that fortune telling is a vocation to be pursued as a matter of common right. It is not. The lawmakers are entitled to believe that no human being has the power of foretelling future events and that therefore fortune telling may be a fraudulent means of preying upon the ignorant, the superstitious, and the gullible. Consequently it has been uniformly held that the state, in the exercise of its police power, may constitutionally prohibit fortune telling altogether. Mitchell v. Birmingham, 222 Ala. 389, 133 So. 13; Williams v. Jenkins, 211 Ga. 10, 83 S. E. 2d 614; Davis v. State, 118 Ohio St. 25, 160 N. E. 473; State v. Neitzel, 69 Wash. 567, 125 P. 939, 43 L. R. A., N. S. 203, Ann. Cas. 1914A, 899.

If the legislature can absolutely forbid the practice of fortune telling, palmistry, and the like, it must logically follow that the same result may be achieved by the levy of a tax that is made so high as to prevent anyone from engaging in the business with profit. Bridewell v. Bessemer, 35 Ala. App. 337, 46 So. 2d 568. “The use of the taxing power to destroy a business which might be validly prohibited violates neither the due process nor the equal protection clause.” Morgan, Protection of Natural and Fundamental Eights, 2 Ark. L. Eev. 203, 210.

In citing a number of Arkansas cases the appellee overlooks the fact that the language which she considers to be favorable to her position had reference to occupations of common right. The distinction was clearly made in McGriff v. State, 212 Ark. 98, 204 S. W. 2d 885, where we invalidated a prohibitory tax upon the lawful business of photography. It was said: “A rule frequently emphasized is that when a legislative body having power to tax a certain subject matter actually imposes such a burdensome assessment as effectually to destroy the right to perform the act or use the property, then validity of the enactment depends upon the nature and character of the thing or operation destroyed. If so great an abuse of the taxing power is manifest as to render valueless natural and fundamental rights which no free government could consistently violate, it is the duty of the judiciary to hold such act unconstitutional.” A similar thought was expressed in Baldwin v. Blytheville, 212 Ark. 975, 208 S. W. 2d 458: “Second, it [the tax] must not be so excessive as to prevent one from engaging in a lawful occupation, or amount to the suppression of a business or occupation which is not in itself unlawful or injurious to public health or morals. Rogers v. Rogers, 174 Ark. 486, 295 S. W. 708; Helena v. Russworm, 190 Ark. 601, 79 S. W. 2d 995.”

On the other hand, where the occupation to be licensed is merely a privilege, such as the business of selling liquor, the issuance of the license is a matter “not of right, but purely of legislative grace, and may be extended, limited or denied without violating any constitutional right.” Blum v. Ford, 194 Ark. 393, 107 S. W. 2d 340.

The appellee also cites Conway v. Waddell, 90 Ark. 127, 118 S. W. 398. That case involved a tax upon peddling, which is not inherently injurious to the public welfare or morals, and, further, the opinion must be read in the light of later cases such as Ex parte Byles, 93 Ark. 612, 126 S. W. 94, 37 L. R. A., N. S. 774, and Davis v. Hot Springs, 141 Ark. 521, 529, 217 S. W. 769, 771. See also the discussion of the Conway case in Morgan’s article, supra, p. 210, and Penix, Tax Immunity of Natural or Common Rights in Arkansas, 2 Ark. L. Rev. 411, 414.

In adopting the statute now in question the General Assembly certainly knew that a weekly tax of $100 would effectively prohibit the practice of fortune telling in all the smaller communities of the state, where a palmist’s income could not be expected to equal the amount of the tax. Hence we must recognize the fact that the legislature undoubtedly intended for the statute to embody prohibition as well as regulation. Inasihuch as the vocation of fortune telling is not one of common right the appellee has no constitutional basis for challenging the tax.

Reversed and dismissed.

Holt and Robinson, JJ., dissent.